Empathy

My thanks to ACS for inviting me to comment during this confirmation process. We have not even gotten to the questioning yet, and I am already feeling the need to weigh in. The distortion of key concepts like "partiality" that has occurred in some of the opening statements should not go unanswered. The senators should be asked to ground some of their sweeping generalities in actual examples of legal judgments that a justice might actually confront. For example, they ridicule or criticize the idea of bringing "empathy" to the job. But what does their criticism mean?

Let's take the example of Gideon v. Wainwright, a case in which the Supreme Court decided that states must provide defense attorneys for those accused of crimes if they can't afford to hire a lawyer. The Constitution guarantees all accused a right to counsel, but for the first nearly two centuries of the Constitution's life, that was understood to apply only to those who could afford a lawyer. The Supreme Court in 1963 looked at the realities of the criminal justice system and determined that the Constitution's commitments to fairness and justice could not be attained if indigent defendants had no representation. This was a judgment based on both a commitment to ideals such as equality and liberty and justice, but also based on the facts that brought those ideals to life in the real world as it existed at the time. Was this empathy? Was it partiality? The broad generalizations offered today by some of the senators critical of Judge Sotomayor would seem to suggest that there is something illegitimate, or perhaps even corrupt, about such a decision.

Ever since President Obama announced that he would seek out an empathetic replacement for David Souter on the Supreme Court, the nation has engaged in a revealing debate about empathy. No one denies that empathy is an important quality for our daily lives, and something we should engender in our kids. But there is an honest disagreement about whether empathy is an appropriate qualification for a judge.

Liberals like empathy, because compassion brings mercy, and mercy is seen as an important part of good judging. Conservatives denounce empathy, saying compassion breeds judicial activism. Law professor Steven Calabresi has warned that asking judges to be empathetic is like removing the blindfold from the iconic Lady Justice, allowing the judge to decide in favor of whichever perspective elicited more feelings of compassion.

If empathy is simply a matter of being open to feeling a certain amount of sympathy for one party or the other, the conservatives may be right that it creates risks for a judicial institution. Judges might be too quick to base judgments on unacknowledged bias or prejudice.

There is a better definition of empathy for the judicial context, however, that focuses not on how judges feel but how they think. This kind of empathy is not only beneficial for the institution, but crucial. And David Souter has embodied this kind of empathy in his tenure on the court. Let me explain.